K. Balakrishnan and Udayananda K. v Mogral Puthur Grama Panchayat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **WP(C).No. 8616 of 2019** ## **PETITIONER/S:** > 1 **K.BALAKRISHNAN AGED 59 YEARS S/O. KUNHIRAMAN VYDIAR, PRESIDENT, KANTHIKARE JANAKEEYA VIKASANA SAMITHY, KANTHIKARE, RAMDASNAGAR P.O, KASARAGOD.** > 2 **UDAYANANDA K. AGED 50 YEARS, S/O VASU SECRETARY, KANTHIKARE JANAKEEYA VIKASANA SAMITHI KANTHIKARE, RAMDASNAGAR (PO) KASARAGOD** **BY ADVS. SRI.P.V.ANOOP SRI.K.V.SREERAJ SRI.M.P.PRIYESHKUMAR** ## **RESPONDENT/S:** - **1 MOGRAL PUTHUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, RAMDAS NAGAR (P.O), KASARGOD DISTRICT, PIN-671 124.** - **2 THE SECRETARY MOGRAL PUTHUR GRAMA PANCHAYAT, RAMDAS NAGAR P.O, KASARAGOD DISTRICT, PIN-671 124** - **3 RELIANCE JIO INFOCOMM LIMITED 32/0/2552-C, P.K. TOWER, 1ST FLOOR, MAMANGALAM, NEAR YATHRI NIVAS, PALARIVATTOM, PALARIVATTOM P.O, ERNAKULAM, PIN -682 025** - **4 REVENUE DIVISIONAL OFFICER, KASARAGOD, PIN-671 001** - **5 DISTRICT COLLECTOR, KASARAGOD, PIN-671 001** -:2:- **WP(C).No. 8616 of 2019** ## **OTHER PRESENT:** **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Kkj -:3:- **WP(C).No. 8616 of 2019** ## **JUDGMENT** The petitioners are residents of Ward No.VIII of Mogral Puthur Grama Panchayat in Kasaragod district. They have filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P1 building permit dated 20.12.2018 issued by the second respondent, the Secretary of the first respondent Grama Panchayat and to direct the second respondent to consider and pass orders on Ext.P7 representation, after hearing the petitioners and the third respondent. 2. The third respondent, which is a telecom company has been permitted to construct a mobile tower in Sy.No.299/8 and 237/12 (wrongly stated as 237/2012 in the writ petition) in Kudlu Village in Kasaragod taluk. The fact that Ext.P1 building permit issued by the second respondent, Secretary of the Grama Panchayat is appealable before the Tribunal for Local Self Government Institutions, as per the provisions contained in Section 276 of the Kerala Panchayat Raj Act is not in dispute. ## 3. In **Commissioner of Income Tax v. Chhabil Das** -:4:- ## **WP(C).No. 8616 of 2019** **Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. ## 4. In **Authorised Officer, State Bank of Travancore** **v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of ## -:5:- ## **WP(C).No. 8616 of 2019** the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. -:6:- ## **WP(C).No. 8616 of 2019** 5. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the ## -:7:- ## **WP(C).No. 8616 of 2019** decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 6. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in -:8:- **WP(C).No. 8616 of 2019** ## **Wolverhampton New Water Works Co. v. Hawkesford** ## **[(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 8. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, -:9:- ## **WP(C).No. 8616 of 2019** the said order will become final. 7. Viewed in the light of the law laid down in the decisions referred to _supra,_ conclusion is irresistible that, if the petitioners are aggrieved by the grant of Ext.P1 building permit to the third respondent, it is for them to avail the statutory remedy under Section 276 of the Kerala Panchayat Raj Act, by approaching the Tribunal for Local Self Government Institutions. In such circumstances, this Writ Petition filed on 20.03.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioners to avail the statutory remedy against the grant of Ext.P1 building permit to the third respondent, by approaching the Tribunal for Local Self Government Institutions. ## **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** kkj -:10:- **WP(C).No. 8616 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE BUILDING PERMIT NO. SC3-BA (7686)/2019 DATED 20.12.2018 ISSUED BY THE 1ST RESPONDENT PANCHAYAT.** **EXHIBIT P2** - **TRUE COPY OF THE DETAILS DOWNLOADED FROM SAFE SPACE EMF HEALTH EFFECTS.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 5TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 14.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 2ND RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 22.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 5TH RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 08.03.2019** **// true copy // Sd/PA to Judge**